"Considerable confusion reigns, both in ordinary and in legal
speech, on what is meant by an act, or a voluntary act. The most
acceptable language is to say that an act means a willed bodily movement
..." (1)

ABSTRACT: Legal history and Sir Samuel Griffith's Criminal
Code do not always sit comfortably together. This is due in a
substantial degree to accepted doctrine concerning the interpretation of
the Griffith Code (the Brennan-Vagliano rule (2)), which deflects
attention away from the Code's historical antecedents, and instead
concentrates focus upon the terms of the Code to the general exclusion
of that history. Only in "exceptional circumstances" should
the Court resort to pre-Code law in interpreting the provisions of the
Code. It is arguable that this canon of interpretation somewhat
over-simplifies what is in reality a substantially more complex
question. This short paper does not, however, enter into the broader
question of interpretation of the Code generally, but confines itself
instead to one narrow issue: the significance of the words "act or
omission", an expression which appears in the Code, in that form,
on numerous occasions, and which represents one of the foundation stones
upon which the Code was erected. The expression, it is suggested, has a
substantial historical pedigree, an appreciation of which can only
assist to advance the modern articulation of criminal law theory under
the Code. "Act" has long been recognised as an inherently
ambiguous term (3); but it is probable that, by the time Griffith came
to write the Code, "act", as a juristic concept, had taken on
a recognised content based predominantly upon Austin's simple
action theory. The accurate determination of this original meaning takes
on an added significance when, as is the case with the Code, the term in
question underpins fundamental concepts of liability, in respect of
which even a minor shift in meaning may substantially impact upon the
daily application of basic tenets of criminal responsibility.

In 1961, the High Court of Australia had occasion, for the first
time, to carefully consider the General Part of Sir Samuel
Griffith's Criminal Code. The case (4) arose under section 13 of
Tasmania's Criminal Code, a provision which, in concept, closely
resembled Griffith's original section 23 of Queensland's Code
(5). Central to the Court's consideration was the word
"act", in the context of the expression "act or
omission" in section 13. The precise difficulty to be resolved was
the content of the word "act". The case involved an unlawful
wounding caused by the discharge of a projectile from an air rifle: was
the "act" in question the discharging of the air rifle; or was
it the wider transaction, inclusive of the wounding of the victim?

In the course of his judgment, Sir Owen Dixon CJ (6) proffered an
observation on the General Part of the Griffith Code which is familiar
to all students of the Code (7):

"The difficulty may lie in the use in the introductory part of
the Code of wide abstract statements of principle about criminal
responsibility framed rather to satisfy the analytical conscience of an
Austinian jurist than to tell a judge at a criminal trial what he ought
to do."

If Dixon's characterization was accurate, and if Griffith was
indeed a "dedicated Austinian" (8), an important question is
posed as to the extent that his Code may have been drafted, at least in
part, upon Austinian principles. That Austin's influence upon 19th
century criminal law may have outlasted his influence upon general
jurisprudence has already been noticed (9). At the very least, there is
a case for exploring the possibility that some of Austin's basic
ideas about criminal law, and of his vision for criminal codification,
made the transition from theory to reality through the medium of Sir
James Fitzjames Stephen (10).

The vehicle for this exploration is the expression "act or
omission". From occasional appearances in the early 19th century,
"act or omission" became the choice of codifiers to denote the
unit of liability in both positive and negative aspects: positive by
denoting an "act or omission" as constituting an offence under
circumstances defined in the Special Part; or negative, by exculpation
from liability where the "act or omission" fell within a
justification or excuse contained in the General Part (11).

"act or omission" under the Griffith Code:

The most significant use of "act or omission" is to be
found in the General Part of the Code. Of the forty-eight uses of
"act or omission" throughout the Code, twenty-four occur
within these first five chapters. The purpose of provisions in a General
Part--to govern the operation of all offences--can only be achieved if a
feature, common to every offence, can be identified. It is upon this
common feature that the general provisions will operate. Griffith
located this common foundation in the requirement that an offence be
premised upon an "act" or an "omission" (12):

"An act or omission which renders the person doing the act or
making the omission liable to punishment is called an offence.

The critical role played by the "act or omission"
requirement is clear if one has regard to the provisions in the General
Part. By way of example are sections 23 and 16 (in their original form):

Intention: Motive.

23. Subject to the express provisions of this Code relating to
negligent acts and omissions, a person is not criminally responsible for
an act or omission which occurs independently of the exercise of his
will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly
declared to be an element of the offence constituted, in whole or part,
by an act or omission, the result intended to be caused by an act or
omission is immaterial.

Unless otherwise expressly declared, the motive by which a person
is induced to do or omit to do an act, or to form an intention, is
immaterial so far as regards criminal responsibility.

Person not to be Twice Punished for Same Offence.

16. A person cannot be twice punished either under the provisions
of this Code or under the provisions of any other law for the same act
or omission, except in the case where the act or omission is such that
by means thereof he causes the death of another person, in which case he
may be convicted of the offence of which he is guilty by reason of
causing such death, notwithstanding that he has already been convicted
of some other offence constituted by the act or omission.

The potential application of these fundamental provisions is
governed by the content to be accorded to "act or omission",
or more commonly, to "act", a fact which underscores the
primacy of clarity of meaning for "act or omission". Far from
clarifying the position, modern interpretations of "act" in
section 23 caused one commentator to ask whether or not Griffith's
self-proclaimed satisfaction with Chapter 5 (13) had been wholly
unfounded (14). Section 16 has fared little better (15).

Traditionally, resort to pre-Code sources is justified on the basis
that "act", in the context of the Code, is a term of uncertain
import, or alternatively had acquired a technical or special meaning by
the time the Code was enacted (16). An attempt will accordingly be made
to deduce, principally from the proto-legislative antecedents of the
Griffith Code, a content for "act" which might facilitate a
more logical development of the Code in its modern legal environment.
These potential sources of information have been generally ignored in
the consideration of the Griffith Code, yet it is clear from
Griffith's own notes that he used other codes, and in particular
the Stephen-based Criminal Code Bill 1880, in compiling his own
contribution to the closing years of the Victorian codification
movement.

"act or omission"--the practical content:

The earliest use of "act or omission" in a practical and
formulaic sense (17) may be Thomas Starkie's Treatise on Criminal
Pleading (18):

"The general rule has long been established, that no person
can be indicted but for some specific act or omission, unless such act
or omission be charged in apt and technical terms, with precision and
certainty on the face of the record."

In discussing the requirements of an indictment, Starkie undertook
a basic elemental analysis (19) of a criminal offence (20):

"Of the Averment of Circumstances collateral to the Act or
Omission, which render that Act or Omission criminal

" ... the criminal nature of the act must appear on the face
of the indictment, and ... if the act or omission be not in itself
illegal, it must be shewn to be so from the particular circumstances of
the case, which cannot be supplied by any intendment whatsoever.... The
criminality of an act, in itself innocent, may arise either from the
situation or knowledge, of the defendant himself, or from that of
others, or from other particular circumstances contained in the
definition of the offence."

In this analysis, the "act or omission" constitutes the
primary, or basic, element of the offence. Attendant circumstances, and
the accused's mental state, which make the act or omission criminal
in nature, are recognised as being distinct from the "act or
omission" underpinning the offence (21).

"act or omission"--the Austinian view:

A consideration of Austin's theory should be prefaced with a
brief reference to Bentham's contribution. Bentham treated action
in terms of "act", "circumstances" and
"consequences". In The Principles of Morals and Legislation,
Bentham discussed "Human Actions in General". Within a
criminal transaction, he isolated four "articles" (22):

"In every transaction, therefore, which is examined with a
view to punishment, there are four articles to be considered: 1. The act
itself, which is done. 2. The circumstances in which it is done. 3. The
intentionality that may have accompanied it. 4. The consciousness, or
unconsciousness, or false consciousness, that may have accompanied
it."

He presented here two physical elements ("act" and
"circumstances"), and two mental elements
("intention" and "voluntariness"). After discussing
"acts", he moved to "circumstances":

"So much with regard to acts considered in themselves: we now
come to speak of the circumstances with which they may have been
accompanied. These must necessarily be taken into the account before
anything can be determined relative to the consequences. What the
consequences of an act may be upon the whole can never otherwise be
ascertained: it can never be known whether it is beneficial, or
indifferent, or mischievous. In some circumstances even to kill a man
may be a beneficial act: in others, to set food before him may be a
pernicious one."

Thus were consequences to follow upon acts and circumstances.
Bentham observed, in respect of consequences, that "the
consequences of an act are events", and his use of
"event" in this context brings to mind Stephen's use of
"event" in his Draft Code, and Griffith's use of the same
term in his own Code (eg sections 12 and 23). This usage is consistent
with the meanings attributed to "event" during the relevant
period (23). Bentham wrote, in summary (24):

"An act of some sort or other is necessarily included in the
notion of every offence. Together with this act, under the notion of the
same offence, are included certain circumstances: which circumstances
enter into the essence of the offence, contribute by their conjunct
influence to the production of its consequences, and in conjunction with
the act are brought into view by the name by which it stands
distinguished. These we shall have occasion to distinguish hereafter by
the name of criminative circumstances."

The expression "act or omission" finds repeated use, in
the context of a criminal offence, in John Austin's notes for a
criminal code (25). Austin divided his Draft Code into (i) The General
Part (26), and (ii) The Particular (or Special) Part. Within the General
Part, he included such concepts as would have general application across
the spectrum of criminal offences, as follows:

Austin's General Part typified the approach adopted in most
criminal codification undertakings of the Victorian period (27). Chapter
3 contained several principles which were erected upon the basic element
of an "act or omission" (28):

1 An act or omission is not a crime (or is not
imputable to the party), unless the party knew, or,
with due attention, might have known, that, under the
circumstances of the fact, it was a crime [or, an act
or omission is not a crime (or is not imputable to
the party) unless the party subsumed the fact, or,
with due attention, might have subsumed the fact,
under the law]
2 An act or omission is not a crime, if it be purely
involuntary; ie if the not doing the act done, or the
doing the act omitted, did not depend anywise on the
wishes (or will) of the party.
3 Generally, an act or omission is not a crime, or is
more or less excusable, if it proceeded from an
instant and well-grounded fear stronger than the fear
naturally inspired by the law.
4 An act or omission pursuant to a legal duty is not a
crime
5 An act or omission pursuant to a legal right, or to a
permission or licence granted or authorised by the
law, is not a crime.
6 An overt act (or such an act, other than a confession
of the party, as indicates his criminal knowledge) is
of the essence of a crime by commission; also of a
crime by omission accompanied with criminal
knowledge.

Underpinning "act or omission" was Austin's idea of
what constituted an "act". This was inextricably tied to his
perceptions of the mental phenomena he designated as
"volition" and "will" (29):

"Certain movements of our bodies follow invariably and
immediately our wishes or desires for those same movements: Provided,
that is, that the bodily organ be sane, and the desired movement be not
prevented by an outward obstacle or hindrance. If my arm be free from
disease, and from chains or other hindrances, my arm rises, as soon as I
wish that it should. But if my arm be palsied, or fastened down to my
side, my arm will not move, although I desire to move it. These
antecedent wishes and these consequent movements, are human volitions
and acts (strictly and properly so called). They are the only objects to
which those terms will strictly and properly apply."

After some elaboration, he continued (30):

"And as these are the only volitions; so are the bodily
movements, by which they are immediately followed, the only acts or
actions (properly so called). It will be admitted on the mere statement,
that the only objects which can be called acts, are consequences of
Volitions. A voluntary movement of my body, or a movement which follows
a volition, is an act. The involuntary movements which are the
consequences of certain diseases, are not acts. But as the bodily
movements which immediately follow volitions, are the only ends of
volition, it follows that those bodily movements are the only objects to
which the term 'acts' can be applied with perfect precision
and propriety." (31)

Austin himself acknowledged that this conception of "act"
did not necessarily accord with what could be called common usage (32):

"The only difficulty with which the subject is beset (33),
arises from the concise or abridged manner in which (generally speaking)
we express the objects of our discourse.

Most of the names which seem to be names of acts, are names of
acts, coupled with certain of their consequences. For example, If I
kill you with a gun or pistol, I shoot you: and the long train of
incidents which are denoted by that brief expression, are
considered (or spoken of) as if they constituted an act,
perpetrated by me. In truth, the only part of the train which are
my act or acts, are the muscular motions by which I raise the
weapon; point it at your head or body, and pull the trigger. These
I will. The contact of the flint and steel; the ignition of the
powder, the flight of the ball towards your body, the wound and
subsequent death, with the numberless incidents included in these,
are consequences of the act which I will. I will not those
consequences, although I may intend them."

As if to emphasize the importance of his classification, Austin
repeatedly returned to the same theme (34):

"The bodily movements which immediately follow our desires of
them, are the only human acts, strictly and properly so called. For
events which are not willed are not acts; and the bodily movements in
question are the only events which we will. They are the only objects
which follow our desires, without the intervention of means...."

"The bodily movements which immediately follow our desires of
them are acts (properly so called).

But every act is followed by consequences; and is also attended by
concomitants, which are styled its circumstances.

To desire the act is to will it. To expect any of its consequences,
is to intend those consequences.

The act itself is intended as well as willed. For every volition is
accompanied by an expectation or belief, that the bodily movement wished
will immediately follow the wish.

A consequence of the act is never willed. For none but acts
themselves are the appropriate objects of volition. Nor is it always
intended. For the party who wills the act, may not expect the
consequence. If a consequence of the act be desired, it is probably
intended. But (as I shall show immediately) an intended consequence is
not always desired. Intentions, therefore, regard acts--or they regard
the consequences of acts."

"act or omission"--the criminal codes:

"Act or omission" also became a familiar concept to
anyone with even a passing interest in criminal codification. Its first
appearances in what are recognised as the major penal codes occur in
1826 in Edward Livingston's Benthamic Code of Crimes and
Punishments drafted for the State of Louisiana, and the United States.
It occupies a central position in the Code (36):

"An offence is a voluntary act or omission, done or made
contrary to the directions of a penal law."

In May 1837, Thomas Macaulay completed, more or less
single-handedly (37), the Indian Penal Code (38). Macaulay utilized the
"act or omission" formula as a foundational concept in respect
of offences against the "human body" (39).

In his Draft Code for Jamaica (40), R S Wright included an
extending definition of "act", which was to include "any
act or omission, and any series of acts or series of omissions, and any
combination of acts and omissions" (41). Using "act" as
an operative element, he articulated criminal intention using the
contrast between "act" and "event" (42).
Wright's definition of a "crime" again utilized
"act" (43):

"Any act which is punishable under this Code or which is
punishable on indictment under any other law is in this Code designated
as a crime."

The provisions dealing with insanity, intoxication and mistake (44)
were also to operate upon an "act".

Sir James Fitzjames Stephen's Digest of the Criminal Law,
first published in 1877, is arguably the single most important document
in the history of English criminal codification. Preparing it, Stephen
was to say, was the hardest work he ever did (45). His purpose in
compiling the Digest was to demonstrate the feasibility of criminal
codification in England; and when he came to prepare the Draft Codes,
and especially the Draft of 1878, he needed only to recast the Digest to
produce the desired result (46). In Chapter 3 of the Digest, Stephen set
out what he classified as "General Exceptions". A number of
these exceptions (47) were premised upon an "act". His use of
"act or omission" was generally confined to offences which
could involve commission by negligence (48). This approach was largely
preserved in the 1878 Draft Code (49), with the addition--necessary due
to the nature of the code--of provisions as to the application of the
code (50), and the place of commission of offences (51).

The Royal Commission of 1879, of which Stephen was a member,
produced a further Draft Code as an Appendix to its report (52). This
Code was very similar to its predecessor. The place of commission
provision, in addition to attaching jurisdiction to an "act"
or "omission", introduced the term "event", in the
sense of a happening necessary to the completion of the offence (53).
The use of "act" in Part III (Justification and Excuse) was
reduced, but "act or omission" remained pivotal in the chapter
on Homicide (54).

The Criminal Code Bill of 1880 (55) was the third and final Draft
Code in which Stephen was directly involved. Although unsuccessful in
England, it provided the impetus for codes which were to be introduced
in Canada, New Zealand, and eventually Queensland. The Bill used
"act or omission" to underpin its definition of an
"offence" (56), and, coupled with "event", to define
jurisdiction (57). "Act or omission" also found its place in
the General Part (58), and in respect of nuisances (59), and homicide
(60).

Austin and pre-Code theory:

Austin's basic theory of action was generally accepted through
the second half of the nineteenth century, and into the twentieth
century. At the time Griffith compiled the Code, it represented orthodox
opinion:

"An act is always a voluntary muscular contraction, and
nothing else. The chain of physical sequences which it sets in motion or
directs to the plaintiff's harm is no part of it, and very
generally a long train of such sequences intervenes." (61)

"... law, in availing itself of the term act, must have
recourse to some one of [the] popular meanings, and when it has selected
one, it must adhere to it without deviation. The only one which is at
all adapted to its purposes is that of voluntary muscular motion. The
application of the term act to resolutions of the will or the conscience
is unsuitable for law, because law is directly concerned only with that
part of men's conduct which is exposed to the judgment of the
senses. Whatever inquiry it directs to be made into states of mind and
feeling is wholly subordinate and auxiliary to the inquiry into the
probable consequences, and, therefore, into the true nature, of
voluntary muscular motions.

Acts, then, in the eye of the law, are such muscular motions as are
preceded by the peculiar phenomenon entitled will." (62)

"An act is the bodily movement which follows immediately upon
a volition. What follows upon an act in connection with it are its
consequences. It is necessary to remember this, although, in common
language, we often use the word 'act' to express both an act
and its consequences; as, for example, when we speak of an act of
murder. Without a bodily movement no act can be done. A silent and
motionless man can only forbear." (63)

Stephen, in his General View of the Criminal Law of England (64),
refined Austin's basic proposition one step further:

"What ... is an action? An action is a set of voluntary bodily
motions combined by the mind in reference to a common object. This
definition asserts, first, that an action is a combination of certain
external motions, with certain internal sensations, the existence of
which, in the person moving, is inferred from the fact that similar
motions on the part of the observer are preceded and accompanied by such
sensations."

By this formulation, Stephen injected a practical element, in
acknowledging that most "acts" which were the concern of the
law were, in fact, complex acts consisting in the co-ordination of a
number of simple acts (65). For example, the shooting of a firearm
requires the performance of a number of individual or simple acts,
including holding the weapon, steadying the weapon, aiming the weapon,
and depressing the trigger. These separate acts, as Stephen observed,
are combined, by the will, to achieve the common object, namely the
discharging of the weapon in the direction of a particular target.
Austin's theory remains basic to this conceptualization, in that a
claim that an act was involuntary needs to be linked to one of these
simple acts, eg that the act of depressing the trigger occurred during a
struggle, or by reflex, and was not a "willed act"; or eg that
the aiming of the weapon was not a "willed act" in that a
third party, at the critical moment when the trigger was depressed by
the shooter, pushed the barrel of the weapon towards a different target.

Austin and post-Code theory:

Austinian action theory continues to be relevant to the practical
operation of the criminal law. It has been substantially codified in
both the Model Penal Code (66), and in the Commonwealth Criminal Code
(67). Modern commentary commonly acknowledges Austin's trinity of
act, circumstance, and consequence (or event), as representing the most
useful analytical approach to the physical elements of a criminal
offence (68). One of the leading contemporary criminal code theorists,
Professor Paul Robinson, confirms this view (69):

"Writers disagree as to the precise definition of an
'act'. Some writers define 'act' as simply a
muscular movement. This is the most common modern usage. Others define
it as a willed movement. The disagreement is not of practical importance
because the act requirement is nearly always drafted to require not only
an act but a voluntary act ... Other writers define 'act' to
include the circumstances and consequences of the act. But this usage is
not the modern view and, if it was adopted, it would undercut the modern
offence definition system that divides the objective components of an
offence into conduct, circumstance, and result elements."

Robinson also summarised the purposes to be served by a modern act
requirement (70):

"... the act requirement serves to bar punishment for
unexternalized thoughts, attempts to give some minimal objective
confirmation that a defendant's intention does exist, provides a
time and place of occurrence of an offence, offers a starting-point for
resolving the thorny issue of liability and punishment for multiple
related offences, and limits in a modest way governmental power to
define offences."

The most influential opposing view to the Austinian concept of
"act" was that expressed by Sir John Salmond (71). Salmond
suggested a wide view of "act", which was to include the
"act" (in its Austinian sense), the circumstances, and the
consequences (72):

"Every act is made up of three distinct factors or constituent
parts. These are (1) its origin in some mental or bodily activity or
passivity of the doer; (2) its circumstances; and (3) its consequences.
Let us suppose that in practicing with a rifle I shoot some person by
accident. The material elements of my act are as follows: its origin or
primary stage, namely a series of muscular contractions, by which the
rifle is raised and the trigger is pulled; secondly, the circumstances,
the chief of which are the facts that the rifle is loaded and in working
order, and that the person killed is in the line of fire; thirdly, the
consequences, the chief of which are the fall of the trigger, the
explosion of the powder, the discharge of the bullet, its passage
through the body of the man killed, and his death. A similar analysis
will apply to all acts for which a man is legally responsible."

Salmond retained the basic three components of action identified by
Austin. The difference was one of nomenclature: Austin identified the
initial element as the "act"; whereas Salmond called it the
"origin", and used "act" to describe the whole of
the transaction (73). Salmond was aware of the contrary view and,
referring specifically to Austin and Holmes, observed (74):

"By some writers the term act is limited to that part of the
act which we have distinguished as its origin. According to this
opinion, the only acts, properly so called, are movements of the body.
'An act', it has been said, 'is always a voluntary
muscular contraction and nothing else'. That is to say, the
circumstances and consequences of an act are not part of it, but are
wholly external to it. This limitation, however, seems no less
inadmissible in law than contrary to the common usage of speech. We
habitually and rightly include all material and relevant circumstances
and consequences under the name of the act. The act of the murderer is
the shooting or poisoning of his victim, not merely the muscular
contractions by which this result is effected. To trespass on another
man's land is a wrongful act; but the act includes the circumstance
that the land belongs to another man, no less than the bodily movements
by which the trespasser enters upon it."

The only ground argued for this departure in terminology was what
Salmond called the "common usage of speech" (75). He did,
however, add a footnote to this part of his text (76):

"It is unfortunate that there is no recognised name for the
origin or initial stage of the act, as contrasted with the totality of
it. Bentham calls the former the act and the latter the action ... But
in common usage these two terms are synonymous, and to use them in this
special sense would only lead to confusion."

Salmond's view did attract some adherents (77), but it was not
a prevailing view at the time the Code was constructed, and the
influence it should exert upon the interpretation of "act" in
its codal context is questionable (78).

Conclusions:

The implications of accepting the Austinian "act" as
underpinning fundamental provisions within the Griffith Code are
important. To step back, and to refocus upon some of the sections within
the General Part of the Code, through "Austinian eyes", is to
see them in a quite different light. A voluntary act is no longer the
inherently-ambiguous concept which generated so much divergence of
opinion in the Queensland Court of Criminal Appeal, and in the High
Court of Australia; it becomes, instead, the finite "willed bodily
movement" of traditional criminal law theory.

Did Griffith anticipate that "act or omission", and in
particular "act", would carry a specific meaning (79); and if
he did, what was his intended content of "act" (80)?
Griffith's former Associate, Mr Douglas Graham, provided a valuable
insight into the Chief Justice's penchant for precision in language
(81):

"[Sir Samuel] ... had a passion for accuracy and precision of
thought. Nothing irritated him as much as slovenliness or ambiguity in
thought or expression. He could not abide the advocate who sought by
'words to darken counsel'. 'The essence of
argument', he constantly said, "is the definition of your
terms', and he added that most disputes would never come to Court
if the disputants could only make sure of the meaning of the words they
used."

The brief review of other codification undertakings of the
nineteenth-century set out above shows that, in failing to define
"act", or "voluntary act", Griffith was in
redoubtable company. If this failure was a shortcoming on
Griffith's part, then it was one which was shared by every other
potential codifier (82). Griffith has been described by high modern
authority as a "master of the criminal law" (83). His
achievement in the Code justifies that description. Using the
Stephen-based Bill of 1880 as his foundation, he drew ideas from
selected foreign codes and, while maintaining consistency with
Stephen's style and language, took his Code to a new level with his
development of statutory replacements for mens rea (84).

The probability is that Griffith intended "act", in the
context of "act or omission", to have a finite meaning. That
meaning, one can be virtually certain, reflected the settled meaning of
"act", as a legal conception, as it stood in 1899 (85).
Austin's analysis of human action was the only serious contender to
this title (86). It is reasonably certain that it was not intended to
include all the physical elements of an offence (or as sometimes called,
the actus reus) , as Griffith made clear in his reference to what was to
become section 12 of the Code, which was to confer jurisdiction (87):

"... in a case where several acts or events are collectively
necessary to constitute an offence, and where some only of those acts or
events occur within the jurisdiction, the rest occurring out of the
jurisdiction ..."

Of course, the meaning of particular words in a statute may not
remain constant. For example, it might be argued that the content of
"act" should vary with shifts in popular meaning, or
development in technological or scientific theory. Further, the
potential for ambiguity of a particular term increases where the term
remains undefined for the purposes of the particular instrument. This
might be a deliberate policy--a "purposive ambiguity" may
better serve a community where it allows that community to reflect its
contemporary values (88). Should "act", in the Code, enjoy the
"flexibility" offered by either the "statute is always
speaking" principle, or its own inherent ambiguity?

To use as an example section 23, the voluntary conduct requirement
is a foundation of criminal responsibility in Queensland. What is it
that must be voluntary? It is the accused's conduct; or more
precisely, the accused's act or omission. It has been settled, as
least since Kaporonovski (89) (and often re-affirmed (90)) that it is
the narrow (Austinian) concept of "act" which must be
voluntary. If "act" is accorded a different content, it
necessarily results in a shifting of the foundation of criminal
liability; and, as is consequential upon any foundational shift, the
structure which rests upon it--in this case the day-to-day
administration of the criminal law--cannot but be affected. It is hard
to see that a return to pre-Kaporonovski uncertainty as to the content
of "act" is a desirable development. There are, no doubt,
cases which test the theory (91), but it does continue to provide the
most workable basis upon which to assess the complexities of human
action, as well as maintaining the consistency required by the criminal
law.

Professor Fletcher (92) has argued that basic philosophical
concepts, such as action theory, should not be part of a criminal code.
Rather should the drafters leave such definition to the endeavours of
the scholars, drawing upon that developing body of doctrine when
required to articulate an aspect of the theory for the purpose of the
case at hand. Codes which allow for this assimilation of philosophical
theory and "black-letter" criminal law he would describe as
"deferential" codes. Codes like the Model Penal Code (and, one
would assume, the Commonwealth's Criminal Code), which purport to
enter the philosophical enclave through definition of fundamental
concepts, he denoted "imperialistic" (93). From a practical
viewpoint, the strongest objection to this course involves the necessity
for doctrinal stability in the criminal law: consistency in doctrine is
unattainable when it is sought to erect that doctrine upon the shifting
sands of philosophical theory. Even assuming that some consensus could
be reached by the action philosophers, the law is faced with the
unacceptable situation of remaining uncertain pending such agreement
(94).

The utility of action theory in assistance of the law depends
entirely upon the task it is expected to perform. In articulating his
three components of human action, Austin made it possible to assign the
various rules of criminal responsibility to an appropriate place within
this action paradigm. As a result, we have today a fairly clear
demarcation between the phases of action, and their relevant role in
assessing criminal liability: "act" (section 23(1)(a),
"1st limb"), "circumstances" (sections 22(2) and 24
(95)), and "consequences" (or "events") (section
23(1)(b), "2nd limb").

If Griffith did adopt to the use of his Code the Austinian
conception of action, one can be reasonably certain that he did so, not
because he believed that it represented philosophical truth, but because
it was calculated to perform a practical and useful function (96):

"The choice [as to which meaning of 'act' is
selected] must be based upon convenience rather than upon philology.
And, for the purposes of judicial discussion, convenience will best be
served by encouraging the present trend toward the limitation of the
word 'act' 'to denote an external manifestation of the
actor's will' without the inclusion of the results which
follow, leaving, however, sufficient latitude to permit the word to be
used, as a sort of dialectic shorthand, to express certain common and
complicated manifestations of the will, such as shooting and
driving."

Any "choice", in respect of the Queensland Code, was made
by Sir Samuel Griffith in 1897. The result of that choice was a General
Part which was, and which remains, brilliant in its sheer simplicity.
Perhaps it was to this achievement that Griffith was referring when
expressing his particular satisfaction with Chapter 5.

John Aberdeen of the Queensland Bar

(1) Glanville Williams, Textbook of Criminal Law (1978) p 33.

(2) This expression is used as a convenient shorthand description
of the rule (or set of rules) on the interpretation of "codes"
laid down in Brennan v R (1936) 55 CLR 253, and Bank of England v
Vagliano Brothers [1891] AC 107.

(5) Gibbs J (as his Honour then was) in Kaporonovski v R (1973) 133
CLR 209 at 229, perceived no real difference between the sections such
as might affect the interpretation of "act".

(6) 108 CLR at 58. In his speech upon the occasion of his
retirement as Chief Justice of Australia, Dixon CJ revisited his
recollections of Griffith: "... he was a dominant legal mind. To my
way of thinking, it was a legal mind of the Austinian age, representing
the thoughts and learning of a period which had gone, but it was
dominant and decisive. His mind was clearly of that caliber; he did not
hesitate, he just felt that he knew; and that what he knew was
right": 110 CLR v, xi (13/04/64); reprinted Jesting Pilate (1965) p
258. In Timbu Kolian v R (1968) 119 CLR 47 at 61, Windeyer J noted that
s.23 of the Queensland Code (as applied to Papua New Guinea) used
"the language of analytical jurisprudence". In R v
Kaporonovski [1972] Qd R 465, 498G-499E, 503C, Justice Graham Hart
considered that s.23 used Austinian concepts.

(7) Dixon CJ's Austinian reference demonstrated his awareness
of Austin's theories as they pertained to criminal law. Having
recognised their potential influence, however, he chose to pursue it no
further in his judgment. By mid-1961, when Vallance was decided, many of
Austin's theories were generally taken to be outdated. His action
theory was said by H L A Hart to be "an out-dated fiction--a piece
of eighteenth-century psychology which has no real application to human
conduct": "Acts of Will and Responsibility", in
Punishment and Responsibility (1970) p 101. Hart's essay, in which
he gave voice to this opinion, was first published in 1960, and at the
time was described as "a frontal attack" upon Austin: Book
Review (1961) 6 JSPTL 93 (J A Coutts). Whether Dixon CJ was aware of
Hart's criticism of Austin at the time of Vallance is unknown, but
Windeyer J, in the later case of Timbu Kolian v R (1968) 119 CLR 47, at
64-65, specifically referred to Hart's paper, and declined to apply
Austin's conception of "act" to section 23. It has been
cited more recently, again in reference to section 23, by Gummow and
Hayne JJ in Murray v R (2002) 211 CLR 193, at 209. Hart rested his
argument on two grounds: (i) that "act", in the sense of a
muscular contraction, could not properly include an omission; and (ii)
that Austin's narrow definition of an "act" was
inconsistent with the common usage of the term. As to the first point,
Austin did not maintain that an "act" included an omission:
see eg R F Stalley, "Austin's Account of Action" (1980)
18 (4) Jnl Hist Phil 448, 449. In fact, Austin's Notes for a
Criminal Code (discussed further below) used "act or omission"
in the exculpatory provisions of its General Part. In respect of the
second objection, the fact that most people, when thinking of an
"act", do not think of it in terms of a muscular contraction
(or even a bodily movement), is not really to the point (see also K W
Saunders, "Voluntary Acts and the Criminal Law: Justifying
Culpability Based on the Existence of Volition" (1987-88) 49 U
Pitts LR 443). Austin sought to analyse human conduct, to
jurisprudential ends, by reference to its constituent parts. Where human
conduct entails legal consequences, analysis of that conduct is
unavoidable: common usage may refer to an "agreement", rather
than characterizing the conduct in terms of offer, and acceptance; or,
in the case of a motor accident, a claim that one party was "in the
wrong", or "at fault", does not excuse a court from
examining the transaction by reference to the elements of duty, breach,
causation, and damage. Depending upon the circumstances under
consideration, and what is in dispute, the criminal law may similarly
demand elemental analysis of a transaction. Austin identified the basic
tools to undertake that task.

(10) Stephen was an admirer of Austin: Morison op cit pp 148-151.
Along with others, he was consulted by Sarah Austin with respect to the
editing of her late husband's unpublished manuscripts: L & J
Hamburger, Troubled Lives: John and Sarah Austin (1985) p 195; "In
his [Stephen's] first principles he was an unhesitating disciple of
Bentham and Austin": Leslie Stephen, The Life of Sir James
Fitzjames Stephen (1895) p 204. It is even possible to draw a direct
line of descent from Austin to Griffith, via Starkie (and the Criminal
Law Commissioners), and on to Sir James Fitzjames Stephen who, with his
fellow Commissioners of 1879 (Blackburn LJ, and Barry and Lush JJ),
referred back to the Reports of the Criminal Law Commissioners in
preparing their Draft Code of 1879 (see Report of the Royal Commission
appointed to consider the Law Relating to Indictable Offences (1879) p
6); in its turn, the Draft of 1879 provided the basis for the Bill of
1880, upon which Griffith drew so heavily in the course of preparing the
Queensland Code.

(11) This is not to suggest that the use of "act or
omission" was confined to criminal codification. Sir Frederick
Pollock used the expression to encompass the physical element in his
Draft of a Civil Wrongs Bill preparedfor the Government of India
(completed circa 1886), and appended to The Law of Torts (1887) pp 517
et seq: see eg section 10, and compare with sections 6 and 9. Pollock
also recognised, within his Bill, distinct "General" and
"Special" Parts.

(12) Code section 2. Contrary to some views, this does not penalize
an "act or omission" standing alone, but only where the
circumstances or consequences of the "act or omission" are
such as to engage an offence provision within the Special Part of the
Code. If this section is read with section 36, the combined effect is
that all offences should be premised upon an "act" or an
"omission", in order to receive the benefit of the exculpatory
rules in Chapter 5. Under the criminal law of Queensland, there is no
"act requirement" as it is popularly referred to. The
expression "act or omission", in section 2 and in other
sections in the General Part, places "act" and
"omission" on an apparently-equal footing insofar as their
status as constituent elements of an offence is concerned, with no
obvious preference that an "act" be present, rather than an
"omission". Further, it is open to the Queensland Parliament
to create offences based upon any criteria, whether or not they include
an act or an omission, and there is no fundamental or
"constitutional" quality about section 2 of the Code which
would prevent such offence creation. Implied departure from section
2's principle may be evidenced simply by a later inconsistent
statute. There is a stronger argument for asserting that Queensland law
does recognize a "voluntariness" requirement, as laid down in
the first limb of section 23 which, although still defeasible, will be
held to apply in the absence of very clear indications to the contrary:
eg Hunt v Maloney [1959] Qd R 164.

Although the Stephen draft codes did not include a counterpart to
section 2 of the Griffith Code, it is clear that Stephen followed the
same line of reasoning: "I suppose that in strict theory it would
be impossible to define a crime otherwise than as an act or omission
punished by law ...: J F Stephen, "The Criminal Code (1879)"
(1880) The Nineteenth Century (Jan) p 136 at p 145.

(13) "No part of the Draft Code has occasioned me more
anxiety, but I may add that I regard no part of the work with more
satisfaction": Letter of 29/10/1897, from Sir Samuel Griffith,
Chief Justice, to the Attorney-General of Queensland.

(18) 1814, vol 1 at p 63 (2 vols). John Austin (1790-1859) and
Thomas Starkie (1782-1849) were close contemporaries, but Starkie's
Pleading predated Austin's writings. In 1814, Austin was still
reading for the Bar. He was admitted in 1818, although his reading lists
indicate interest in Bentham's Principles of Morals and Legislation
as early as 1816: Morison op cit pp 8-9. Both Starkie and Austin
lectured at the University of London (Austin in Jurisprudence and the
Law of Nations, and Starkie in Equity and Common Law) and both were
destined to be appointed as Criminal Law Commissioners by Lord Brougham
in 1833. Austin resigned in 1836, and was replaced by David Jardine.
Starkie remained a Commissioner throughout the term of the original, as
well as a later commission, until his death before the final report was
submitted in 1849: R Cross, "The Reports of the Criminal Law
Commissioners (1833-1849) and the Abortive Bills of 1853", in P R
Glazebrook (ed), Reshaping the Criminal Law: Essays in Honour of
Glanville Williams (1978) pp 5-21. Starkie and colleague Henry Bellenden
Ker were the main drafters of the Commissions' Reports: M Lobban,
"How Benthamic was the Criminal Law Commission?" (2000) 18 (2)
LHR 427, 428. It is not possible to know whether or not Griffith had
reference to the Commissioners' Reports in drafting his Code,
although Windeyer J on one occasion assumed that he had done so: Timbu
Kolian v R (1968) 119 CLR 47, 61.

(19) He appears to have been well-qualified for the task, assisted
by a keen mathematical bent. Having been Senior Wrangler and
Smith's prizeman at Cambridge, he was elected a Fellow of St
Catharine's College in 1803. He was called to the bar in May 1810,
after having been pupilled to the prolific legal author Joseph Chitty
Snr. His Criminal Pleading was accordingly written early in his
professional career, predating the multi-volume treatise on criminal law
authored by his pupilmaster by some two years. He produced his
well-known Practical Treatise on the Law of Evidence in 1824, and was
the second Downing Professor, from 1823-1849: DNB Starkie, Thomas
(17821849); "Mr Starkie" (1849) 10 Law Review 201-204. As
Professor Smith has noted, Starkie was "clearly no intellectual
slouch": K J M Smith, Lawyers, Legislators and Theorists:
Developments in English Criminal Jurisprudence 1800-1957 (1998) p 127.

(20) Supra vol 1 at p 149. Bentham had considered act and omission
in his Introduction to the Principles of Morals and Legislation
(Harrison Ed, 1967) pp 190-191, but rather than "act or
omission", he used "act" to denote both, and then
delineated the concepts of "positive acts" (such as consist in
motion or exertion), and "negative acts" (such as consist in
keeping at rest; that is, in forbearing to move or exert oneself). Any
direct influence upon Starkie's use of "act or omission"
was more likely to have come from his master, Joseph Chitty, who had
used "act or omission" in his Treatise on Pleading, in the
context of actions contra formam statuti, some five years earlier: 1 A
Practical Treatise on Pleading and on the Parties to an Action (1809) p
358.

(21) Compare one of the very few judicial excurses into offence
analysis by Lord Mansfield in R v Scofield (1784) Caldecott 397, 403, in
the context of "attempt": "So long as an act rests in
bare intention, it is not punishable by our laws: but immediately when
an act is done, the law judges, not only of the act done, but of the
intent with which it is done; and, if it is coupled with an unlawful and
malicious intent, though the act itself would otherwise have been
innocent, the intent being criminal, the act becomes criminal and
punishable."

(25) J Austin, 2 Lectures on Jurisprudence (5th Ed, 1911),
"Fragments of a Scheme of a Criminal Code", pp 1051 et seq,
containing edited notes. These notes, in and of themselves, are but
memoranda of Austin's thoughts on criminal law, and codification.
With respect to their direct influence, the most that can be said is
that they were available (along with many other potential sources on
codification) to any diligent codifier of the early 1890's. The
difficulty in developing any theory of potential influence is compounded
by the uncertainty of the date of preparation of the subject memoranda.
They may have been prepared while Austin was still a member of the
Criminal Law Commission (a possibility suggested by Sarah Austin), or
following his departure from the Commission, when he began work alone,
suggesting he might "write a complete draft of a criminal
code": Hamburger op cit pp 51, 215 n70. This time frame would put
the origin of the Notes circa 1833-1836. A little later, Austin used the
"act or omission" formula in what may be the only
"proto-legislation" which has come down to us of which we can
say that it was "pure Austin", namely, his draft legislation
on censorship and libel for the Island of Malta, submitted in late 1838.
Austin, along with his former student, and friend, (later Sir) George
Cornewall Lewis, were appointed in 1836 as Commissioners to investigate
and report upon matters affecting the government of Malta. The draft
censorship Bill was one of the issues addressed by the Commissioners:
Draft of an Ordinance for Abolishing the Censorship, and for providing
against Abuses of the consequent Liberty of Publishing, in Sessional
Papers of the House of Lords, vol VII, 1839.

(28) "These six principles, which are in the nature of axioms,
appear to cover all exemptions from criminal liability allowed in
respect of conduct amounting outwardly to an infraction of the
law": D A Stroud, Mens Rea, or Imputability under the Law of
England (1914) p 23. Professor Kenny described Dr Stroud as a
"follower of Austin": Book Review (1915) 31 LQR 451.

(29) John Austin, Lectures on Jurisprudence, or the Philosophy of
Positive Law (5th Ed, 1911 printing) (hereafter referred to as LJ) pp
411-412. All subsequent references are to the pagination in this
edition.

(30) LJ pp 414-415.

(31) This is particularly important, and indicates that Griffith
did not apply Austin's theory in any pedantic manner. In
Austin's view, an involuntary bodily movement was not an
"act"; the word "act" necessarily included the idea
of voluntariness. Thus, to speak of a "voluntary act", to
Austin, would present a tautology. Griffith's use of
"act", however, refers to only the bodily movement. This is a
neater formulation, which then permits of treatment of "act"
from both "willed" and "unwilled" perspectives.

(32) LJ p 415.

(33) A difficulty, one might observe, which also bedeviled
Professors Hart and Salmond, as well as a number of members of the High
Court of Australia.

(34) LJ p 419, 421.

(35) See Jerome Hall, "Edward Livingston and his Louisiana
Penal Code" (1936) 22 ABAJ 191; E H Moore, "The Livingston
Code" (1928) 19 (3) Jnl of the American Inst of Criminal Law and
Criminology 344; for Livingston's letter to Bentham of 10th August
1829: P Schofield and J Harris (eds), "Legislator of the
World': Writings on Codification, Law and Education (1998) pp
382-384.

(36) The Complete Works of Edward Livingston on Criminal
Jurisprudence (2 vols, 1873), Book I, Chap III, Art 27 (see also Book
II, Title I, Chap I, Art 75) Compare section 2 of the Griffith Code.
Other examples of usage (although by no means an exhaustive list) may be
found in the Introductory Report to the Code; Book I, Chap I, Art 1, 2,
6; Chap III, Art 46; Book II, Title II, Chap I, Art 81; Title IV, Chap
I, Art 124; Chap II, Art 131; Title VII, Chap II, Arts 230, 234; Book of
Definitions. The fact that Griffith also used the Penal Code for the
State of New York in compiling his Draft Code makes some brief reference
to the former instrument desirable. The Draft of New York's Penal
Code (1865) also reveals substantial use of the "act or
omission" formula: see eg Preliminary Note, p iv, section 2 (Code
to be exclusive), section 3 ("A crime or public offense is an act
or omission forbidden by law, and to which is annexed, upon conviction,
either of [prescribed punishments]"), section 20 (involuntary
subjection), section 430 (nuisances), section 661 (violation of
directors' duties), sections 737-739 (multiple punishments),
section 764 (negligence).

(37) DNB Thomas Babington Macaulay, Baron (1800-1859); Sir Rupert
Cross, "The Making of English Criminal Law: Macaulay" [1978]
Crim LR 519; K J M Smith, "Macaulay's 'Utilitarian'
Indian Penal Code: An Illustration of the Accidental Function of Time,
Place and Personalities in Law-Making", in W M Gordon & T D
Fergus (eds), Legal History in the Making (1991) pp 145-164.

(38) A Penal Code prepared by the Indian Law Commissioners (1838).
Macaulay had to hand Livingston's Code, as appears from the
references to the other work in the extensive "Notes".

(39) See eg Sections 294, 304, 308, 309, 327, 329.

(40) Drafts of a Criminal Code and a Code of Criminal Procedure for
the Island of Jamaica, C 1893 (Presented to both Houses of Parliament
August 9, 1877). The best discussion of the Wright Code is that by Dr
Martin L Friedland, "R S Wright's Model Criminal Code: A
Forgotten Chapter in the History of Criminal Law" (1981) 1 OJLS
307; and in Friedland, A Century of Criminal Justice (1984) Ch 1.

(41) Section 9(v).

(42) Section 10. See also sections 11 and 12 (negligence and
causation), which revolve around the "event".

(43) Section 19.

(44) Sections 38, 39, 40.

(45) Leslie Stephen, The Life of Sir James Fitzjames Stephen (1895)
p 377.

(49) Criminal Code (Indictable Offences) Bill, No 178 of 1878,
House of Commons Papers 1878-79, vol 2, p 5. A background to the Draft
Codes is contained in the latter part of D H Brown's "Abortive
Attempts to Codify English Criminal Law" (1992) 11 (1)
Parliamentary History 1-39; also The Genesis of the Canadian Criminal
Code of 1892 (1989) Ch 2.

(50) Section 3.

(51) Section 4.

(52) Report of the Royal Commission appointed to consider the Law
Relating to Indictable Offences, Command 2345, 1879, House of Commons
Papers 1878-1879, vol 20, p 169.

(61) O W Holmes Jr, The Common Law (1881) p 91. This observation
was made in the context of tortious liability. He perceived no
distinction in respect of conduct underpinning criminal liability: see p
54.

(62) Sheldon Amos, The Science of Law (8th Ed, 1896) pp 100-101;
DNB: 1835-1886; Professor of Jurisprudence, University of London; The
Science of Law went through eight editions from 1874 to 1896; it was
preceded in 1872 by A Systematic View of the Science of Jurisprudence,
which expounded a similar view of "act": see p 93.

(63) Sir William Markby, Eements of Law (6th Ed, 1905)
[section]215; DNB: 1829-1914; Eements of Law underwent six editions from
1871 to 1905; as testimony to Markby's standing, "It was in
Markby's rooms at All Souls that he, Thomas Erskine Holland,
Frederick Pollock, James Bryce, and William Anson initiated the Law
Quarterly Review ...".

(64) (1863) p 75. The second edition, of 1890, displayed only minor
variation: "VOLUNTARY ACTS--A voluntary action is a group of bodily
motions accompanied or preceded by volition, and directed to some
object."

(65) Austin himself had acknowledged that it was common usage to
use the term "act" to refer to such complex undertakings as
shooting a weapon: LJ p 415. "Acts" of driving and shooting
remain classic modern examples of complex acts; each may require further
breakdown if, for example, it is alleged that a simple act (within the
complex) was unwilled

(70) Paul H Robinson, "Should the Criminal Law Abandon the
Actus Reus--Mens Rea Distinction?", in S Shute, J Gardner & J
Horder, Action and Value in Criminal Law (1993) p 193. See also Case
Studies and Controversies, op cit pp 480-483. The reference to
"multiple related offences" is given in the context of s.654
of the Californian Penal Code which, like section 16 of the Queensland
Code, operates upon an "act or omission".

(71) The first edition of Jurisprudence appeared in 1902, after the
Code was passed. This major treatise had been preceded, in 1893, by The
First Principles of Jurisprudence. Salmond's treatment of
"act" in this earlier work anticipated some of the ground
later to be covered, eg the "positive" and
"negative" acts (ie the latter including omissions),
"internal" and "external" acts (the
"internal" act having been rejected by Austin), and
intentional and unintentional acts.

(72) J W Salmond, Jurisprudence (1902) pp 401-402.

(73) On Salmond's view, compare K W Saunders, "Voluntary
Acts and the Criminal Law: Justifying Culpability Based on the Existence
of Volition" (1987-88) 49 U Pitts LR 443; Saunders points out that
Salmond recognised that the transaction was separable into the three
parts, namely origin, circumstances, and consequences, and observes,
"The choice of terms is less important than the recognition of
separability" (p 452).

(78) Similarly with the chameleonic expression actus reus, which
does not seem to have entered legal usage as a description of the
physical elements of a crime until it was so used by Professor C S Kenny
in the first edition of his Outlines of Criminal Law in 1902: see Jerome
Hall, General Principles of Criminal Law (2nd Ed, 1960) p 222, citing a
private communication with Professor J W C Turner. Salmond's
assertion that there was "no recognised name" for his
"origin" stage of action seems somewhat disingenuous, having
regard to the fact that "act" had been the preferred choice of
Bentham, Austin, Holmes, Sheldon Amos and Markby. It might add weight to
Glanville Williams' assertion that "Salmond's method in
writing the book [Jurisprudence] was to give a smooth and lucid
presentation of his own point of view, mostly as though it were the only
opinion in the world". Dr Williams edited the tenth and eleventh
editions of Salmond's Jurisprudence: see R F V Heuston, "Sir
John Salmond" (1964) 2 (2) AdelLR 220-225.

(79) " ... Griffith, who was confident of his own opinions,
would have thought that the words of s.23 ["act"] were
perfectly plain ...": The Right Honourable Sir Harry Gibbs,
"Queensland Criminal Code: From Italy to Zanzibar" (2003) 77
ALJ 232, at p 236.

(80) An important question is whether Griffith contemplated that
"act or omission" would retain the same content wherever it
was used in the Code. The traditional rule--that the same word should
carry the same meaning throughout the instrument--has been described as
weak or readily rebutted. Where the term is used frequently and
constitutes an integral part of fundamental concepts, the presumption
may be substantially stronger: compare Clarke v Kato [1997] 1 WLR 1647,
1659G per Lord Clyde, on "road" in the Highway Act 1988(UK).
Where a code is involved, the assumed codal aims of clarity and
certainty favour a consistent content, at least in the absence of
absurdity.

(81) A Douglas Graham, The Life of the Right Honourable Sir Samuel
Walker Griffith (1939) at p 59.

(82) Including Sir James Fitzjames Stephen.

(83) Sir Harry Gibbs, Queensland Judges on the High Court (2003) p
29. This writer would suggest that Justice (later Chief Justice) Gibbs
stood second only to Griffith himself in respect of the interpretation
of the Code: "His reasoning in Kaporonovski and Stuart should be
compulsory reading for all students of the Queensland Criminal
Code": Justice G N Williams, Queensland Judges, op cit, at p 62.

(84) "[Sections 22, 23 and 24] embody the rule as to mens
rea": Sir S W Griffith, Draft of a Code of Criminal Law (1897) p 12
n 1. This writer would include, among Griffith's especially-notable
statutory achievements, section 16 of the Code (double punishment). The
original section, as drafted by Griffith, went directly to the core of
the leading contemporary authorities of Wemyss v Hopkins (1875) LR 10 QB
378, and R v Miles (1890) 24 QBD 423. The Royal Commission on the Code
recommended the addition of the "homicide exception" (or
"delayed death exception") to the original text, which
addition accurately reflected the qualifying effect of R v Morris (1867)
LR 1 CCR 90.

(85) "... and when it has selected one [meaning], it must
adhere to it without deviation": S Amos fn 62 above.

(86) A qualified view was offered by Dr E C Clark, in An Analysis
of Criminal Liability (1880), pp 23-24, where he instanced the case of
the man with a rapier, extending his arm, and thus piercing his
victim's chest. This caused him to suggest that: "Consequences
very near, and what would be considered, in the judgment of all ordinary
men, very certain, are taken as 'parts of the act': more
correctly speaking, as inseparably connected with the first bodily
movement ... [a]cts, then, are, I believe, in the ordinary popular sense
of the word, movements of the body coupled with the more immediate
consequences of those movements". This work, it has been said, was
not very influential: C H S Fifoot, Judge and Jurist in the Reign of
Queen Victoria (1959) p 124. It was this same proximity between act and
consequence which challenged the High Court in Kaporonovski. The
approach taken by Gibbs J, and that which, it is suggested with respect,
was correct, was that although there might be a contemporaneity between
the latter stage of the act, and the initial stage of the consequence
(in that the act of thrusting the rapier continues so long as force
continues to be applied, while the consequence commences immediately
upon the slightest piercing of the victim's chest) it may still be
necessary (albeit in rare cases) to draw the analytical distinction
between the two aspects of the transaction.

The prominence of Austin's theory was countenanced by the
inclusion of a relevant quotation in A New Dictionary of the English
Language, vol 1, (Murray Ed, 1888), and which still finds a place in its
direct descendant, the Oxford English Dictionary. The case of R v
Tricklebank [1994] 1 Qd R 330 represents, so far as ascertained, the
only occasion upon which Austin's concept of "act" was
possibly applied. Ironically, it was misapplied. The case concerned
"act" in section 16 of the Code, and in the course of
attributing content to "act" in the section, Demack J (at
340-341) referred to the Oxford English Dictionary which contained an
abbreviated reference to Austin's theory. Demack J seized upon the
words "The only objects which can be called acts are the
consequences of volition" in possible support of a conclusion that
"being adversely affected by liquor" was an "act".
However, the quotation contained in the OED was abridged. Recourse to
Austin's work itself provides the full statement of principle:
"...the only objects which can be called acts, are consequences of
volitions. A voluntary movement of my body, or a movement which follows
a volition, is an act. The involuntary movements which are the
consequences of certain diseases, are not acts": LJ pp 414-415. In
Austinian terms, the relevant transaction would be viewed thus: the
desire to drink gave rise to a volition which preceded and caused the
"acts" of raising the vessel to the lips, pouring the contents
into the mouth, and swallowing the beverage; the blood alcohol reading
was a consequence of those acts. In the context of the specific offence
in question, the blood alcohol reading was a circumstance, or
concomitant.

(94) Former Justice J B Thomas of Queensland's Supreme Court,
in both judicial and extrajudicial contexts, has argued against the
introduction of action theory into the criminal law: R v Morgan [1999]
QCA 348 para 6; "Judge Fears Potential for Disaster" (1995)
Australian Lawyer (June) 12, and subsequent correspondence: (1995)
Australian Lawyer (Aug) 14; (1995) Australian Lawyer (Oct) 6, 7. Action
theory is a" highly specialized branch of philosophy": D
Husak, Review (1995) 6(2) Criminal Law Forum 327. Its full implications
may well be beyond many lawyers (including the present writer), but
there is nothing especially complex about Austin's theory: it does
no more than provide a wider theoretical basis for Gibbs J's
interpretation of "act" in Kaporonovski v R, which is now
firmly established as the law of Queensland (see R v Taiters [1997] 1 Qd
R 333) and guides the way for the development of the law, along the same
lines, throughout the Code. The fact that the theory may derive from
another discipline is nothing unusual in the law: "... law is often
not the autonomous discipline that many of its practitioners and
theorists want it to be; rather, law is a borrower--in the first
instance, from ethics, and ultimately, from metaphysics. In the criminal
law in particular, legal liability both does and should by-and-large
track moral responsibility, making legal distinctions (like that between
acts and omissions) take point and substance from underlying moral
distinctions": Professor Michael Moore, Act and Crime: The
Philosophy of Action and its Implications for Criminal Law (2010) vii.

(95) Section 22(claim of right) is a specialized
"circumstantial" exculpation, in that it applies only to the
mental element attending property offences. Mental states, under the
Code scheme, are circumstances, not "acts". Austin had
rejected the idea of mental (or internal) acts: LJ pp 420-421.